A new Tiger King show is out on Peacock, Joe vs. Carole. But the public should pay less attention to Joe vs. Carole and more to United States v. Maldonado-Passage (Joe Exotic’s legal name). While its fact pattern is highly unique, the case against Joe Exotic is predictable in that the court didn’t want to hear anything about misconduct by the United States Attorneys in Oklahoma.
On January 27, US District Court Judge Scott Palk refused to hear any evidence of government misconduct in reducing “Tiger King” Joseph Maldonado-Passage, AKA Joe Exotic’s 264 month sentence. After winning an appeal, developing cancer on top of pre-existing common variable immunodeficiency, Maldonado-Passage secured only a five percent reduction in his sentence; it went from 22 years to 21 years
The arguments before Judge Palk weren’t just that Maldonado-Passage prevailed on appeal. His attorneys said the original sentence violated federal law by enhancing the penalties twice for the same behavior. Maldonado-Passage’s attorneys offered another sentencing range: 121-151 months or around 10 to 13 years, but also that his sentence should be even shorter than that because United States Fish and Wildlife Service (USFWS) agents entrapped him, created a crime that wouldn’t have existed without their interference.
The Netflix series Tiger King was such a funnel cloud of severed limbs, political campaigns, cat prints, and Second Amendment abuses that it’s hard to keep straight exactly what the case against Joe Exotic alleges.
To recap: The jury convicted Maldonado-Passage of the two most serious crimes: separate attempts to hire someone to kill his nemesis, Carole Baskin. The first alleged attempt was the $3000 paid to Allan Glover, the hired hand who conducted his Netflix interview in a bathtub. Glover is the only witness to these alleged actions and he concedes that he never even approached Baskin. Glover’s also admitted to perjuring himself while describing his interactions with Maldonado-Passage.
The second alleged attempt happened after an undercover agent named “Mark” approached Maldonado-Passage and discussed a murder. No money, no weapons changed hands; United States Attorney for Amanda Green admitted as much in an interview for the Netflix series. To be guilty of the crime, someone has to take one of those “overt” actions. Simply ranting about killing someone doesn’t count. Yet that’s exactly what the majority of the case against Maldonado-Passage consists of.
Maldonado-Passage is also convicted of charges related to euthanizing and selling animals. I’ve reported before that prosecutors and investigators very likely committed Brady violations — instances of withholding exculpatory evidence — when they exhumed tiger carcasses.
The Tiger King’s re-sentencing is a great example of why judges should hold hearings on allegations of government and/or prosecutorial misconduct before imposing sentence or re-sentencing any defendant — and any finding of misconduct should slash the length of sentences imposed.
Courts have held that the punishment phase of a case is the wrong forum for violations of professional rules, and that claims of prosecutorial misconduct don't belong in sentencing hearings. In Joe Exotic’s case, Judge Palk said that his attorneys should bring it up in a Motion for a New Trial, which his attorneys plan to do.
That judges should keep misconduct allegations out of sentencing hearings would be a valid argument if there were a viable alternative for sussing out government or prosecutorial malfeasance, but there isn’t. Seeking to hold prosecutors accountable through the grievance system doesn’t really work.
This kind of misconduct accounts for about 30 percent of wrongful convictions; about 44 percent of murder convictions that were later overturned involved district attorneys’ dirty deeds, according to the National Registry of Exonerations of the University of California Irvine, the University of Michigan Law School and the Michigan State University College of Law.
Not only are incorrect murder convictions unjust they permit a dangerous person to possibly harm more people.
And the bar doesn’t really care about this. Only one percent of prosecutors who courts have determined committed misconduct ever undergo discipline. That’s not one percent of all prosecutors; it’s one percent of prosecutors who already had their bad behavior documented and decided in a courtroom. Ninety-nine percent of those already-determined-to-have-cut-corners lawyers skate. And when law professors filed grievances against 21 New York prosecutors last year, the professors got in trouble for complaining. This seedy subsection of the bar can secure a win any way they choose.
Because prosecutors tend to object to accountability, they will likely stomp and reel at any review of their actions in a case against someone else. They’ll predict that defendants will mount attacks on every prosecutor who tries a case in an attempt to reduce their sentence, the need for hearings will cause more court clog.I think that argument overblows the numbers of people who try their cases and thus invite prosecutors to proceed ethically. According to the most recent numbers from the Bureau of Justice Statistics, 69,348 defendants appealed criminal convictions in 2010; that’s for all 50 state court systems combined. That’s a little over 1300 cases per state where a prosecutor’s trial behavior would even be at issue. But they can’t be evenly distributed: California likely has more than, say, Idaho.
Considering that only 12 percent win their appeals, that’s 8,226 around the country, and surface an opportunity for resentencing, fleshing out misconduct when it counts doesn’t seem insurmountable given what’s at stake: freedom.Of course, allowing misconduct allegations to be aired during the trial phase isn’t foolproof; misconduct can affect a case in the pretrial phase; that’s the nature of Brady violations. Sometimes accused persons plead guilty because they’re unaware of exculpatory evidence. Those defendants wouldn’t necessarily benefit from litigating misconduct at sentencing.
And some experts aren’t convinced of this solution. Miriam Krinsky, Executive Director of Fair and Just Prosecution, an organization dedicated to reforming the ways criminal cases are pursued, said at the 17th Annual Harry Frank Guggenheim Symposium "Justice at the Crossroads" on March 3: “Not only are the courts a very inadequate vehicle, a far too limited vehicle for dealing with [prosecutorial misconduct], but I also really fear are presuming that the state bar is going to solve any of this.”Krinsky may be correct. But there’s a more holistic reason to vet a prosecutor’s actions during — and not after, or in a different proceeding — a criminal case. Sentencing hearings go through a checklist of factors in a defendant’s life, facts usually presented to the court through pre-sentence investigation reports
.While criminal trials ask the question: “What happened here?” and determine the party responsible, sentencing hearings ask “How did we get here?” A prosecutor’s professional conduct answers that question. Any decent defense attorney who suspects something hinky should allege it on the record and request a hearing — and courts should grant it.There are long-term benefits of getting this information on the record as soon as possible. It allows the remedy of sentence reduction when the conviction itself won’t budge because appellate courts are so loath to overturn convictions. Hashing out misconduct early on might speed up post-conviction review by enabling an appellate court to consider it when looking for reversible error.
Right now, anyone whose conviction resulted from misconduct has to exhaust the direct appeal process before post conviction review can expand to evidence outside the trial record in what’s called a petition for a writ of habeas corpus. Not only do prosecutors get away with misconduct, if they are caught, the remedy comes so late that it barely fixes anything. It’s bad enough that the criminal legal system coddles prosecutors and encourages them to use any tactic necessary. What’s worse is that no one can discuss these missteps in hearings where they can make a difference.
Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.